or otherwise the witness need not be called (»). So, too, there are no degrees in secondary evidence. The oral testimony of a witness is as sufficient secondary evidence of the contents of a written instrument as a copy of such instrument would be, although the latter may be more satisfactory. (r) 17 & 18 Vict. c. 125, s. 26; 28 & 29 Vict. c. 18, s. 7. CHAPTER V. PRESUMPTIVE EVIDENCE. EVIDENCE is said to be Presumptive, or Circumstantial, or Inferential, as distinguished from Direct, when an inference as to a disputed fact is drawn from the proof or assumption of a collateral fact. There is a considerable difference between Direct and Presumptive Evidence, in the case of oral testimony. In the former we credit the language of the senses as translated through the judgment of the witness, and certified by his solemn asseveration. The question then for decision is not one of inference, but of credibility. It is true that the credibility of the witness is itself a matter of inference, which must be gathered from his demeanour and surrounding circumstances. But when we are satisfied as to his veracity and judgment, the adoption of his statements follows as an included consequence. It is different in Presumptive Evidence. The same question of credibility occurs at the outset; and the judge or jury has to decide a similar and preliminary inquiry into the veracity and accuracy of the witness; but this is only a first and easy stage of reasoning. When the reality of the collateral fact has once been established, the judgment must trace its relation to the matter in issue. It must not dis dain to weigh remote analogies, distant affinities, nor even improbable possibilities. On the other hand, it must avoid scrupulously the tendency to over-refinement, which vitiates many subtle and imaginative minds. Only knowledge of the world, and an extensive experience of human nature, can enable men to determine, and that only in their own minds, what is the distinction between that proximate or recondite circumstance, which suggests irresistibly the truth or falsehood of a proposition, and that irrelevant, obscure, and suspicious form of hypothesis, which checks us as irresistibly in making it the basis of affirmation or negation (a). In R. v. Burdett (b), Abbott, C. J., said :—“A presumption of any fact is properly an inference of that fact from other facts that are known; it is an act of reasoning: and much of human knowledge on all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference; but if no fact could thus be ascertained by inference in a court of law, very few offenders could be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given: the man who is charged with theft is rarely seen to break the house or take the goods; and in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, (a) See this subject fully discussed in Bentham's Rationale of Judicial Evidence. (b) 4 B. & Ald. 161. or the poisonous ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to beafforded either of explanation or contradiction. Noperson is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction; if the con-clusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily." In the same case his lordship recognized a principle which, although laid down by Lord Hale (c), and correct to a large extent, does not appear, according to other cases, to be true universally. The rule is-Never to convict where the corpus delicti (the substantial crime or act of guilt) is not established. In Evans v. Evans (d), Lord Stowell said:-"It has been asked, and very properly asked, Do not courts of justice admit presumptive proof? Do you expect ocular proof in all cases? I take the rule to be this: If you have a criminal fact ascertained, (c) 2 Hale's Pleas of the Crown, 290. ... you may then take presumptive proof to show who did it to fix the criminal, having then an actual corpus delicti; " . . . but the same learned judge, in a later case (e), stated the evidence which is required in cases of adultery; and his judgment there contains a more comprehensive statement of this rule. He said "It is a fundamental rule that it is not necessary to prove the direct fact of adultery, because, if it were otherwise, there is not one case in a hundred in which that proof would be attainable; it is very rarely indeed that parties are surprised in the direct fact of adultery. In every case almost, the fact is inferred from circumstances that lead to it by a fair and necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally . . . because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two (e) 2 Hagg. Cons. 2. |